March 12, 2012

"If I remember correctly, 'Gratz' was referenced in the very first question asked that day. Each time they mentioned my name, I wanted to jump out of my seat and say, 'I'm sitting right here. I'm a real person.'"

Writes Jennifer Gratz, who was the plaintiff in the 2003 Supreme Court case challenging the affirmative action admissions policy at the University of Michigan. (She won. There was a second case, dealing with a more subtle/nuanced approach to affirmative action at the University of Michigan Law School. The plaintiff in that case, Barbara Grutter, lost.)

Gratz is writing now because the Supreme Court just granted certiorari in a case challenging the affirmative action policy at the University of Texas. She (or her ghostwriter) writes:

Before the court hears arguments in [Abigail] Fisher’s case, I hope the justices notice that a lot has happened since Gratz and Grutter were decided.

Immediately following the Michigan decisions, I uprooted my life, resigned from a great job in the software industry and started the Michigan Civil Rights Initiative, a statewide ballot initiative that asked Michigan voters to decide if race preferences should continue at the University of Michigan. Overwhelmingly, Michiganders voted to neuter O’Connor’s ruling in the Grutter case, making state-sponsored discrimination unconstitutional in the Wolverine state.

Arizona, Nebraska and New Hampshire followed Michigan’s lead and Oklahoma is poised to ban race preferences this November. A critical mass, 27% of the population, now resides in states where race preferences have been banned by voters. California, Washington and Florida banned race preferences prior to the Michigan decisions.

Which way does that cut? The Supreme Court only said that affirmative action, done subtly, is constitutionally permissible. It doesn't say that it is required! If the people of a state don't like the policy, they are free to outlaw it as a matter of state law, as many states have done. Why would information about states opting out of a permissible policy provide the Supreme Court with additional reason why the policy should be seen as violating the U.S. Constitution? By permitting it but not requiring it, the Supreme Court leaves the policymaking to the states.

It seems to me that the additional information Gratz presents is a reason to leave the constitutional law the way it is. The issue is being worked out in the political arena, the place where Gratz herself has been an effective participant. You can still say, as Gratz has always said, that the Supreme Court ought to perceive a right to be free of racial discrimination in admissions, that classroom diversity isn't the kind of compelling interest that can justify taking race into account as a university assembles a student body.

But right now, we have states free to use affirmative action (if they do it in a sufficiently subtle manner) and free to reject it. That many states have chosen to reject it exhibits our system of federalism at work. It doesn't bolster the argument that there is a right to be free of it! To say that, you'd have to assert that the political popularity of a policy somehow grows or hardens into constitutional requirement. But constitutional rights are what we need to protect us from the depredations of political majorities.

By the way, it's interesting that Gratz used the phrase "critical mass": "A critical mass, 27% of the population, now resides in states where race preferences have been banned by voters." "Critical mass" was a key phrase in Grutter. The law school explained its interest in classroom diversity in terms of the need to gain a "critical mass" of students who were members of "underrepresented" minority groups. The term was "understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated... or like spokespersons for their race." One expert had testified that "when a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn there is no '"minority viewpoint"' but rather a variety of viewpoints among minority students."

Interestingly, the "critical mass" that the law school sought had to do with the value of different viewpoints, not the idea that if enough people thinkone thing then a point will be reached when everyone will tip into thinking the same thing. With the law school's notion of critical mass in mind, let's look again at the new information Gratz offers: "A critical mass, 27% of the population, now resides in states where race preferences have been banned by voters." That's good diversity. Good federalism. If the Supreme Court were to identify a constitutional right, it would require 100% of the states to adopt the same policy. It would be anti-diversity, anti-federalism, a choice for uniformity.

We're back to the question of what rights are, not what majorities want. If there really is a right here, then uniformity is the answer. The arguments about whether there is a right, however, remain the same. They are not bolstered by the waning political popularity of affirmative action.

@Chip That goes to the question that I'm saying we should focus on. The discussion in the post is about the value of the additional information that Gratz presents as relevant. So... do you mean to say that you agree with me that the additional information does not cut in favor of finding a right -- does not bolster the other arguments (like the one you cite)?

Yes, I agree w/your analysis of the implication of J. Gratz's info. And I share your appreciation of variation among the states.

But all I was saying here was that it seemed that the argument would depend ultimately on the extent to which state universities' admissions policies were viewed as extensions of the law rather than policies of independent institutions.

Rights are what the majority wants to be "rights."To slow that down a little and see if a new "right" has staying power, we have certain rights enumerated in the Constitution, and of course, John Marshall's judicial review process. But the interpretation of the Constitution is still subject to what the majority wants.

It appears as though you're nitpicking the fact that this Gratz, probably not a lawyer, has suggested that the increased popularity of rejection of affirmative action, through the legislature, might influence the Supreme Court; when you think this actually might cause the court to support affirmative action, since there are other nonjudicial means of getting rid of it, in places where people want to be rid of it.

It's interesting that changing public attitudes clearly affect SCOTUS decisions in other areas; abortion, for example. The idea that there's a constitutional right to an abortion, as the constitution was originally written, is laughable, if the meanings of words are determined by those who write them, and not by those who read them.

The fact that some states might decide to make abortion legal didn't persuade the justices from making it legal everywhere.

Why could, or should, public opinion influence the SCOTUS with respect to abortion, but not with respect to affirmative action, also known as racial discrimination?

And isn't racial discrimination wrong, even (or maybe particularly) when it's applied in states where the victim is outvoted? I don't think too many people go for the federalism argument with respect to universal wrongs, like racial discrimination, or say, slavery; the Democrats gave up on that one at least 50 or 60 years ago.

The idea that Supreme Court Justices don't pay attention to popular opinion, but just exist in some sort of legal bubble is ludicrous. The concept of "critical mass" is important. When Loving v Virginia was decided, only 16 states still had laws against miscegenation on the books. The more states that outlaw the practice of race-based preferences, the more likely it is that the rest of them will be forced to do so.

Justice O'Connor's opinion in Grutter suggests that there will come a day when it is no longer permissible for law schools to take race into account in determining admission. That is, the Court found that unusual circumstances permitted the state to take race into account, but that the day would shortly arrive when the "normal" rule of race neutrality would prevent the use of race conscious policies. The Court considered race conscious policies to be constitutionally suspect and only justified by unusual circumstances. Once the circumstances were ameliorated, race conscious policies were not permissible -- even if the state felt the policies provided some societal benefit.

Perhaps Gratz believes that the evidence she offers supports the position that the time anticipated by Justice O'Connor has arrived. Gratz' evidence can be used to support the continuing need for race conscious policies. The evidence can also be used to support that such policies are no longer needed. Regardless of which way the evidence cuts, O'Connor's opinion requires that courts consider such evidence in determining whether or not race conscious admissions policies are still permissible under the Constitution.

Note: I thought O'Connor got it wrong in Grutter. Constitutional rights shouldn't be subject to some kind of expiration date -- here one day and gone the next. However, the Court disagreed with me (and not for the first time!) and I believe we (they) should follow Grutter -- which calls upon the courts to periodically review whether or not the Constitutional right to have the state treat each person on a race neutral basis should continue to be (temporarily) held in abeyance. The Court didn't tell us how to make that call, so I must assume that the kind of evidence offered by Gratz (along with other evidence) should be considered by the Court.

Because SCOTUS wants to avoid having to overturn legal precedents if they don't have to and they do not want a constitutional convention to happen which clarifies what a compelling interest is with respect to equal protection as then they would have to go through the massive hassle of working out which precedents are based on the current regime. By listening to public pressure they cut this sort of problem off at the pass.

they visualize a young woman whose dreams were dashed because of discrimination sanctioned by the state

I don't think it's right that Gratz's admission to UMich was nixed because of AA. But there is little evidence presented that her destiny to be a doctor was the right destiny for her. And the quoted sentence makes her seem whiny. If she wanted to be a doctor, why not pursue that elsewhere? Is your self-worth so small that a rejection kills your dream? Get a backbone. (Which is an interesting thing to tell a person who takes a case to the Supreme Court! So I guess I agree: Ghostwritten!)

The State owes you exactly nothing. If The State is putting roadblocks in front of your self-perceived path, find a way to move around those roadblocks. It can be done.

She didn't write the briefs in her case. She had lawyers. She was their figurehead because she represented the problem. She is the face of the problem.

To me, that suggests that it's likely that she has people, including lawyers, working with her. The style of the column seems like typical lawyer-written PR, including the personal-sounding stuff at the beginning.

"It seems to me that the additional information Gratz presents is a reason to leave the constitutional law the way it is."J. Harvie Wilkinson (of the Fourth Circuit and formerly a top conservative candidate for SOTUS) has an interesting op-ed in the Post, which if I understand is an argument for judicial restraint on both ACA and "rights", letting such arguments work their way out in the political arena.

There is "cruel and unusual" punishment which seems to vary based on the times. I think there is a case against Joe Arpaio (sp?) questioning whether he ought to be able to require inmates to use pink-undergarments.

But let's face it. If one wants to look at rights in a "strict constructionist" approach, Roe V. Wade would not have passed (not that I'm against abortions personally, it simply isn't allowed by the constitution).

The constitution is a living document, unfortunately. That means rights can be hammered out of existence should the justices want them to be.

In answer to your question "No, the constitution is not about majority rules," but "the justices have made it that way."

Your very example of the SCOTUS supporting racist admissions by finding against Grutter proves that.

Perhaps what you are saying is that the states can fix a broken SCOTUS? I don't understand, Ann. Simply because the Supreme court declares something constitutional does not make it so.

"The idea that Supreme Court Justices don't pay attention to popular opinion, but just exist in some sort of legal bubble is ludicrous. The concept of "critical mass" is important. When Loving v Virginia was decided, only 16 states still had laws against miscegenation on the books. The more states that outlaw the practice of race-based preferences, the more likely it is that the rest of them will be forced to do so."

The question isn't whether they are influenced, and the "ludicrous" idea you point to was never stated by me.

The question is whether the item of information is a persuasive part of an articulated argument, and when the assertion is made that it is, it is appropriate for a sophisticated legal analyst to point out the nature of the argument that has just been made and to hold it up for critique.

It's a separate matter whether this public opinion will have an effect. I agree that it will, but making people talk frankly and openly about the nature of the argument that is being made is part of the process of influencing the Court too.

If you make people conscious of an influence and reflective about the way it is influencing them/others, they may defend against the influence.

I'm trying to bring all this stuff to the surface so people can see what they are thinking/saying.

That's my project here on the blog to a large extent.

So all of you who are trying to sweep away my question... I insist upon it.

Isn't the idea that diversity is a compelling interest less reasonable if more people think that it's not? Doesn't some of the reason to think that an interest is compelling come from what the people want?

"But right now, we have states free to use affirmative action (if they do it in a sufficiently subtle manner) and free to reject it. That many states have chosen to reject it exhibits our system of federalism at work. It doesn't bolster the argument that there is a right to be free of it! To say that, you'd have to assert that the political popularity of a policy somehow grows or hardens into constitutional requirement. But constitutional rights are what we need to protect us from the depredations of political majorities."

If that were the case then most of the significant legislation and rulings over the last 80 years would have not been passed or issued.

Incidentally I wonder what our hostess would comment if for the sake of argument a number of states would decide to opt of of unfunded and partially funded federal mandates.

The question is whether the item of information is a persuasive part of an articulated argument, and when the assertion is made that it is, it is appropriate for a sophisticated legal analyst to point out the nature of the argument that has just been made and to hold it up for critique.

I suspect it is slapping the faces of the supreme court judges to state they ought to be influenced by the proles, when they are the guardians of one of the most important documents of the world.

That having been said, there seems little doubt their personal views are influenced by their environment, as opposed to the constitution. Whether some of these judges will be honest about that is another question.

To illustrate this, ask yourself this. Kagan seems to think it is constitutional to force people to eat broccoli. Imagine asking that 150 years ago of any supreme court justice.

When there is serious doubt about whether something should be a universal right (such as abortion rights, for example), don't decide it at the supreme court level but leave it to the individual states to decide as they see fit.

It is clear to me that affirmative action is wrong because it is racial discrimination. The use of affirmative action to buy votes and reward privileged interest groups that vote the dnc way is reprehensible.

OTOH, if a large majority of the people in a state think that affirmative action is key to establishing a better society, I'm hesitant to stop them from going for it. It is not for the courts to figure out how to solve difficult or subtle societal problems, especially not to impose a federal decision on the states. Federalism is a great thing and we should not lightly abandon it.

It should also be remembered that academia has relentlessly pushed affirmative action, even when the voters of a state have voted down affirmative action. Academics, even constitutional lawyers, forget that it is the voters who decide the laws of a state, not the academics.

The Supreme Court whittles away at a fundamental right of individuals in the constitution, by arguing "it's good for you, the society," but society rebels and says "No it's not."

Yes, it certainly seems reasonable to me to question the underlying rationale. That having been said, either these rights are rights, or they aren't. The SCOTUS ruled incorrectly, in this case, in my view.

"Compelling interest" indeed. I could imagine using that standard it would have been constitutional for Lincoln to violate the writ of habeous corpus, or however that's spelled, as constitutional because of the "compelling interest."

In other words, the constitution with these arguments isn't worth the paper it's written on, so long as you can imagine a "compelling interest."

Great point that the courts have to protect the rights of minorities so that laws are not passed that discriminate against minorities. White males are a minority in every state (except maybe Alaska). Affirmative action discriminates against a minority (white males).

She was their figurehead because she represented the problem. She is the face of the problem.

To me, that suggests that it's likely that she has people, including lawyers, working with her. The style of the column seems like typical lawyer-written PR, including the personal-sounding stuff at the beginning.

A much stronger version of this line of thought has been used to suggest that you should have been using "(or Bill Ayers)" more than you have been.

What would happen if the state initiatives had been worded to produce the same results, but with additional verbiage about the Constitution? For example, "As the Fourteenth Amendment to the United States Constitution forbids this state from denying to any person within its jurisdiction the equal protection of the laws, race preferences within this state are hereby banned." I would think if large numbers of the citizens make it known that they believe the Constitution means something different than what the Supreme Court has held it to mean, that's a legitimate reason for the Court to revisit the issue.

The question is whether the item of information is a persuasive part of an articulated argument, and when the assertion is made that it is, it is appropriate for a sophisticated legal analyst to point out the nature of the argument that has just been made and to hold it up for critique.

Gratz (or her ghostwriters - I don't know why that would be important - do SCOTUS justices write their own opinions?) used the rhetoric of her opponents to prove a point. If that rhetoric is unpersuasive, it points back (pun intended) to the weakness of the "critical mass" argument in the first place.

So all of you who are trying to sweep away my question... I insist upon it.

At what cost? Are you going to kick us off the blog if we don't? The fact that you aren't getting the answer you want implies that the commentariat here finds your question wanting.

I think that this is one of the more thought provoking posts that Prof. Althouse has made in awhile. Thanks.

I am not sure which way the states passing anti-AA legislation or referenda cuts. On the one hand, you could argue that the current precedent allows states to pick whether or not they can provide subtle AA preferences. On another though, you could argue that when the people are asked to speak, they tend to speak against AA preferential university admissions.

I am a bit unsympathetic about the former, the States Rights argument. If we are talking fundamental rights, then giving states the right to override such pretty well eviscerates the right. And, I think that the fundamental right would be admission to a state college or university on race neutral grounds. That preferential admission based on race would violate the Equal Protection guarantees of the 14th Amdt.

Pulling a bunch of the stuff above together, I think that it may be relevant that AA is typically imposed by the unelected college administrators, and forbidden more often than not, it seems, by referendum of the people. The universities want it, and the people do not. (Obviously, a generalization). And, an argument could be made that the universities like it due to their overall progressive, (il)liberal biases.

But, that too feels a bit unconvincing to me. For example, in the early 1960s, there was likely a large percentage of the population of parts of the South that supported legal discrimination against Blacks, and that some of the universities there may have been opposed. If that had been a majority of the voting public, would that have been sufficient to overcome any opposition from the academy in what we now consider a fundamental right? Which is maybe a long way of saying that sometimes the people are wrong.

That all said, I do oppose AA as it is so often practiced. The problem is that for the most part, the diversity that was the justification for continuing to allow AA in subtle forms for 25 years (etc.) seems most often to be diversity of skin color, and nothing more. President Obama, having attended a private prep school, most likely has benefited from it throughout his life, and so will his daughters, most likely (not to pick on him, except as a quick and easy example).

Michigan Proposal 2: the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.”

Judge Cole (6th Circuit), joined by Judge Daughtrey, held that the proposal is unconstitutional...

Not sure why we're arguing about race preferences, when (according to the 6th Circuit) they are constitutionally required.

"I'm confused," wept Pop in the movie "Moonstruck." I admit I haven't read the case. I am going to go out on a limb here and presume that Gratz had facts showing that more men than women were admitted to U- Michigan, unlike most schools which these days are admitting more women than men. Otherwise, what's her complaint? Where's her standing to object?

Gratz was a white citizen denied admission to UofMichigan, a state university. The AA admissions policy had the following interesting feature: there was a range of SAT scores such that a white falling in the range would be deemed an automatic reject, while a black with the identical score would (wait for it) be an automatic admit. If this doesn't violate equal protection, then the concept is as meaningless as the document that contains it. Still confused?